OOMPAGlI"!E UNIVERSEU.. E',J!)U ,.<laNAI' INTEROOEANIQ.UE

11.

BELLON!.

581'

purposes, but that is not invention. Taking the principle, heretofore stated, as the criterion, to-wit, that in apaientable design there runst be exhibited originality and beauty, it is apparent that this patent cannot be sustained. The design, which is itssuhject, may' be' beautiful; it certainly is not novel, nor is it original with the patentee. The injuncgranted is dissolved, and the bill is dismissed, with costs. tion

CoMPAGNIE UNIVERSELLE DUCANAL INTEROCEANIQUE
, {Dl.Btriet

t1.

BEI.LONI et al.1

Oourt, E. D. New Yorl" Marcb 28,1891.}

ADMIRALTY PRACTICll-BECURIT"t UNDll:R ADMI:RALIr"t RULE 53-INSUFll'ICllNT ApIiID.lVIT.

An objection by tbe respondent in a cross-suit to giving security under admiralty rule 53 in the amount of the claim of the libel, on the ground tbat he cannot do so "witbout serious embarrassment to his business, and great expense and sacrifice, " fa insu:lllcient. '

In Admiralty. On motion as to amount of security. Butler, Stillman Hubbard, for claimants. W. J. Marrin and R. D.llenedict, forlibelants.

«

BENEDICT, J. This is a motion taken under the adqliralty rule 53 to obtain aqirectioll from the court as til the amount:ofsecurity which, shall be givE(n by Belloni, the respondent in a cross-libel filed by the Compagnie Vniverselle <;In Canal Interi>pElllniq,ueagainst him in this, court. The damages demanded in the action against Belloni are the sum of $20,000.' It, is sought in this motion to have amount of the security ijxedat not exceeding $6,000. The ground upon which this ap. plication is based is that Belloni cannot give security in the amount, in ' the libel "without serious embarrassment to his business, and great ex.. pense, and sacrifice." In my opinion this affidavit does not show cause for ,direction by the court that the security should be less than the sum demanded in the libel, namely, $20,000.
Benedict., Esq.,

',"

.,

588

PEDERAL BEPOl1TER,

vol. 45.

BALL

et ale

V. TRENHOLM.

(District Oourt, D. South OaroUna. , April I, 1891.)

1.

ADMIRALTY-JURISDICTION-DBIIBCTIVE WJlARII.

A claim against a wharf-owner for iriJury sustained by a vessel in tbe dock by reason of an alleged defect therein is wIthin the jurisdiction of admiralty, and a libel in personam will lie.

2.

But where sucb an action has been brought in the state court, and a verdict rendere4 for defendant, and plaintiff's motion for new trial overruled, and a notice of appeal given, the action of the court is res adjudioata. although the formal judgment ,has" not been entered, and the the court is exhausted. An order en, teredin the circuit court after appeal to the supreme court, giving plaintiffs leaVe to discontinue their cause on payment of costs, is ooram non judice. and will not enable them to maintain a libel in a oourt of admiralty on the sa.me cause of action.
DISMISSAL OIl SUIT.

RBs ADJUDICATA.

8.

, ,An order to discontinue a caq,se Cannot be entered after judgment.

. rCharles Prioleau, and Northrop « Memminger, for libelants. n Ad,miralty. .'
J. Ancrum Simons, for respondent." ,,:

!'

SIMONTON, J. LilJel in personam' against a wharf-owner forinjury susa vessel in the dock, by reason of an alleged defect therein. tained Exceptions are filed to the jurisdiction of the court, on the ground that the subject-,ma:tterof the suit is not within the cognizance of admiralty;' and, hext,that this controversy has already been determined in the state cohrt. There is no doubt on my mind that the case is within the jurisdiction of the admiralty. The John E. Berkman, B Fed. Rep. 535; Sawyer Oakman; 7 Blatchf. 290; The other exception requires more discussion. An action was brought in the court of common pleas for Charleston, county by these libelants against this respondent. The com" plaint set forth the same facts as are alleged in this libel; the defense" made in the answer is the same made on the nierits in the pleading before this court. The'ca:use, being at issue, was tried before his honor, Judge IzLAR, and a jury. 'The verdict was for the defendant. The plaintiffs moved for a new trial on the minutes, and on an affidavit of the absencl:l of a material witness. The judge in a written decree refused the new trial, expressing his satisfaction with the verdict. Plaintiffs gave notice in writing of their intention to appeal to the supreme court. Before any other steps were taken an order of Judge IZLAR was entered in the court below, giving leave to plaintiffs to discontinue their cause on payment of costs. This order was on the written consent of the attorney for defendant. Under these circumstances, is the controveI'sy between these parties ended, so that this action will not lie? It becomes important to ascertain if there ever was a judgment in thiEl case. There is no paper on file the postea of the old practice, or the summary of verdict and costs of the new procedure, signed by the clerk and the attorney. No formal judgment could have been entered until the motion for a new trial was disposed of. Tribble v. Poore, 28